State v. CaneState v. Cane
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Convicted of the crimes of criminal possession of a firearm, criminal possession of ammunition and possession of a controlled substance with intent to sell, the defendant appealed to this court, claiming, inter alia, that the trial court improperly denied his motion to suppress certain evidence and improperly granted the state‘s motion to join two separate cases against him for trial. The defendant had been charged, in one of the cases, with kidnapping and assault in connection with his alleged conduct with two women, D and P, at his home. The jury found him not guilty of all charges in that case. The police had conducted surveillance of the defendant‘s home and wanted to speak to him outside of the home because it was reported that he had a firearm when the kidnappings and assaults were alleged to have occurred. While one officer was speaking with the defendant on a phone, the defendant went outside of his home several times and walked near one of his cars that was parked in the driveway before reentering the home. The police saw the car‘s lights flash and heard its engine run. The defendant told the officer on the phone that he had the keys to the car but had not started it remotely. After several hours of no contact with the police, the defendant came outside of his home again and walked toward a fence that bordered his property where he was arrested. The police then conducted a protective sweep of the home. The next day, pursuant to search warrants, the police seized various items from the defendant‘s home and car that included weapons, ammunition, marijuana and other drug related materials. Held:
- The defendant could not prevail on his claim that the trial court erroneously denied his motion to suppress the evidence that the police seized from his home and car:
- The warrantless search of the defendant‘s home after he was arrested and in police custody constituted a justifiable, protective sweep of the home in light of specific, articulable facts that supported a reasonable belief by the police that a third party who posed a danger to those on the arrest scene was inside the home where firearms were believed to be present; the police reported that they saw movement within the home and that there were multiple cars on the defendant‘s property, there had been a report of a serious assault of D and P that allegedly occurred in the home within the prior twenty-four to thirty-six hours, D and P had reported that the defendant had guns in the house and had people watch the house, and, in light of the defendant‘s behavior, the police were entitled to discredit his statements that no one was in the home and that he did not possess weapons or start the car in his driveway.
- This court found unavailing the defendant‘s unpreserved claims that he was constructively seized by the police and that they lacked probable cause to search his car: there was no way to know whether a violation of constitutional magnitude in fact had occurred, as the record was insufficient to determine whether the police ordered the defendant to exit his home when they first attempted to make contact with him or how many officers surrounded the home at the time that the constructive entry into the home allegedly occurred; moreover, the information that the police affiants provided in their search warrant application supported a determination that probable cause existed to search the defendant‘s vehicle, as the affiants’ averments that they observed the defendant walk back and forth to the vehicle and heard it being locked or unlocked supported reasonable inferences that he had access to the vehicle when the police observed his movements or prior to their arrival, and that the defendant may have moved evidence from the home to the vehicle, and the defendant‘s reliance on trial testimony to support his assertion that the police lacked probable cause to search the car because no officer saw him open it or any of its hatches was unavailing, as only information that was before the issuing judge at the time the warrant
was signed could be considered in determining whether the warrant was based on probable cause.
- The trial court did not commit plain error when it granted the state‘s motion for joinder, as the defendant, personally and through counsel, expressly stated that he had no objection to joinder; even if the defendant‘s waiver of his claim concerning joinder did not preclude him from prevailing under the plain error doctrine, he could not demonstrate that the claimed error was so clear and harmful that a failure to reverse the judgment would result in manifest injustice, because even though the defendant claimed that joinder prevented him from testifying concerning the firearms charges but that he had reason not to testify with respect to the assault and kidnapping counts, he did not move to sever the informations or indicate that he wanted to testify concerning some counts of the informations but not others, even when the court canvassed him regarding his decision not to testify.
- The defendant could not prevail on his unpreserved claim of judicial bias, which was based on his assertion that the trial court, in its pretrial memorandum of decision on his motion to suppress, had found him guilty of the kidnapping and assault charges prior to any evidence when it referred to D and P as victims and then considered those charges in sentencing him, the record not having supported the defendant‘s contention that the court considered the kidnapping and assault charges when it sentenced him; although the court mentioned the kidnapping and assault charges when it summarized the events that led to the discovery of the firearms, ammunition and marijuana, it had referred to those charges as the “original allegations” and thereafter focused on the events that occurred on the day of the defendant‘s arrest, its reference to the defendant as violent was done in the context of reviewing his criminal history, not with respect to the kidnapping and assault charges, and, therefore, because the record did not provide a basis for the defendant‘s claim of judicial bias, there was no manifest injustice that warranted reversal of the judgment pursuant to the plain error doctrine.
Argued April 10—officially released September 24, 2019
Procedural History
Two substitute informations charging the defendant, in the first case, with four counts of the crime of kidnapping in the first degree, two counts each of the crimes of kidnapping in the first degree with a firearm, assault in the first degree and intimidation of a witness, and with one count of the crime of assault in the second degree, and, in the second case, with three counts of the crime of criminal possession of ammunition, two counts of the crime of criminal possession of a firearm, and with one count each of the crimes of criminal possession of a pistol or revolver, possession of a controlled substance with intent to sell, operation of a drug factory and possession of a controlled substance with intent to sell within 1500 feet of a school, brought to the Superior Court in the judicial district of New Britain, geographical area number fifteen, where the court, Keegan, J., granted the state‘s motion for joinder; thereafter, the court denied the defendant‘s motion to suppress certain evidence; subsequently, the matter was tried to the jury; thereafter, the state filed a substitute information in the second case, charging the defendant with three counts of the crime of criminal possession of ammunition, two counts of the crime of criminal possession of a firearm, and one count each of the crimes of possession of a controlled substance with intent to sell and possession of a controlled substance with intent to sell within 1500 feet of a school; verdict of guilty of three counts of criminal possession of
Daniel M. Erwin, for the appellant (defendant).
Michele C. Lukban, senior assistant state‘s attorney, with whom, on the brief, were Brian Preleski, state‘s attorney, and Helen J. McLellan, senior assistant state‘s attorney, for the appellee (state).
ALVORD, J. The defendant, Robert A. Cane, appeals from the judgment of conviction, rendered following a jury trial, of two counts of criminal possession of a firearm in violation of
The jury reasonably could have found the following facts. On October 7, 2013, the New Britain Police Department received a complaint that the defendant had kidnapped and assaulted two women, D and P, at his home, located at 830 Slater Road in New Britain, during the weekend of October 5 and 6, 2013. D‘s son reported that D was in the intensive care unit at the Hospital of Central Connecticut in New Britain as a result of her injuries.
At approximately 3:30 p.m. on October 7, 2013, as the police began to investigate these allegations, Michael Steele and Kyle Lamontagne, two plainclothes detectives with the New Britain Police Department, went to the defendant‘s home. They conducted surveillance from an unmarked police vehicle parked across the street from the defendant‘s home in order to determine whether the defendant was at his home and to secure the premises. At approximately 4 p.m., Karl Mordasiewicz, also a detective with the New Britain Police Department, relieved Detective Steele from his position in the unmarked vehicle. Detectives Lamontagne and Mordasiewicz eventually left the vehicle and began to surveil the defendant‘s home from the rear porch of a neighboring property.2
Additional police officers arrived shortly thereafter. The police wanted to speak to the defendant about the kidnapping and assault allegations and, because the defendant was reported to have had a firearm when the kidnappings and assaults were alleged to have occurred, they wanted to speak to the defendant outside of his home. Arthur Powers, Jr., a sergeant with the New Britain Police Department, who had known the defendant since the 1970s, called the defendant‘s cell phone number to try to encourage him to speak voluntarily with the officers.3
While Sergeant Powers was on the phone with the defendant, Detectives Lamontagne and Mordasiewicz
The next day, on October 8, 2013, the police applied for a search and seizure warrant pertaining to the defendant‘s residence. The search warrant was issued at noon and executed at approximately 12:55 p.m. On the first floor of the defendant‘s home, the police found a rifle, which was located in a closet, and glassine bags, which were found in the kitchen. In a bedroom on the second floor of the defendant‘s home, the police found three boxes of Blazer Brass brand ammunition, a gun holster, a gun cleaning kit, a “loader” that assists with loading ammunition into a magazine for a firearm, and a plastic bag containing ten shotgun shells. In addition, the police found a metal box containing various types of ammunition in the closet of that bedroom. In a different bedroom also on the second floor of the defendant‘s home, the police found a small amount of marijuana, various lighting and power sources, and a scale. In the attic, the police found a large bag, which weighed approximately ten pounds, containing marijuana, sticks and stems of marijuana plants, cardboard material, and soil.
The police did not locate all of the evidence they had been seeking in the defendant‘s home, including a firearm and clothing associated with the kidnapping and assault allegations. Therefore, later that same day, the police applied for a search warrant pertaining to a Cadillac owned by the defendant. Although there had been several additional vehicles on the defendant‘s property, the police applied for a search warrant only with respect to the Cadillac because the police had observed the defendant walking in the area of that vehicle, and it had been the vehicle that appeared to have been remotely started. The warrant was issued and executed that evening. Inside a bag in the trunk of the Cadillac, the police found a nine millimeter Smith and Wesson handgun, two magazines loaded with ammunition, and a gun holster.
The state initially charged the defendant in two separate informations. In the first information, filed in Docket No. CR-13-0270252-T, the defendant was charged with two counts of kidnapping in the first degree with a firearm in violation of
A jury trial followed, at the conclusion of which the jury acquitted the defendant of the charges set forth in the first information and convicted him of the charges set forth in the second information. The court accepted the verdict but thereafter granted the defendant‘s motion for a judgment of acquittal as to the count of possession of a controlled substance with intent to sell within 1500 feet of a school. The court imposed a total effective sentence of thirteen years of imprisonment. This appeal followed. Additional facts and procedural history will be set forth as necessary.
I
The defendant first claims that the court erroneously denied his motion to suppress evidence that was obtained in violation of his right to be free from unreasonable searches and seizures under the
The following additional facts and procedural history are relevant to our resolution of these claims. On October 8, 2013, Adam Rembisz, a detective with the New Britain Police Department, and Michael Grossi, a sergeant with the New Britain Police Department (affiants), applied for a search and seizure warrant pertaining to the defendant‘s residence. The affidavit in support of the application for the search warrant detailed the information that the police had received with respect to the kidnapping and assault allegations.
As we previously have stated, the affiants applied for a search warrant pertaining to the defendant‘s vehicle after they executed the search warrant pertaining to the defendant‘s home. The affidavit submitted in support of the application for the second search warrant averred, in addition to the information that had been contained in the application for the first warrant, that: “[N]o handgun, yellow shirt, steel toe boots were located as described by the victim, however during the incident prior to [the defendant‘s] being arrested he was observed to walk back and forth to a black Cadillac, bearing registration 137XHF. Responding officers heard the alarm that is commonly sounded when the vehicle is locked or unlocked with a remote as [the defendant] walked to the vehicle. [Department of Motor Vehicle] records show that the said vehicle is registered to the defendant. . . . [The] affiants believe that [the defendant] could have brought evidence to the vehicle from the crime scene within the home prior to surrendering to the police as the handgun, dog collar, yellow shirt, [and] steel toe boots were not located within the residence.”
Prior to trial, the defendant filed a motion to suppress “all evidence obtained through warrantless searches of his home and automobile on . . . October 7, 2013,” on the grounds that (1) “there were no exigent circumstances or any other reasons” to support the protective sweep, and the evidence would not be admissible under the inevitable discovery doctrine, and (2) “there were no exigent circumstances or any other reasons” to support the “warrantless search” of the defendant‘s vehicle, and the evidence would not be admissible under the inevitable discovery doctrine.
In his memorandum of law in support of his motion, the defendant argued that with respect to the protective sweep, “there is no evidence . . . that the police had any information whatsoever that there may have been any other people inside [the defendant‘s] home . . . .” As to the search of the defendant‘s vehicle, the defendant argued that “[t]here were no ‘exigent circumstances’ that would have allowed the police to perform the warrantless search of [the defendant‘s] automobile.”
On November 1 and 2, 2016, the court held a hearing on the defendant‘s motion to suppress. The court heard testimony from the defendant and several members of
At the hearing, the defendant argued that there was no evidence that any other person was inside of the defendant‘s home to justify the protective sweep. The defendant did not make any additional arguments with respect to the search of the vehicle.
On November 3, 2016, the court issued its memorandum of decision denying the defendant‘s motion to suppress. The court determined that (1) the protective sweep was lawful and, even if it were not lawful, the evidence would nonetheless be admissible pursuant to the inevitable discovery doctrine, and (2) the search of the defendant‘s vehicle had been executed pursuant to a search warrant.
The court made the following findings of fact in support of its determination: “On October 7, 2013, at approximately 1:30 p.m., the New Britain police were informed of a serious assault upon two women in a home located at 830 Slater Road. Officer Mark DePinto spoke with [D‘s son], who relayed that his mother and another woman were tied up, severely beaten and ultimately escaped from 830 Slater Road. [D‘s son] also relayed that his mother was currently in the hospital, in the intensive care unit. The location of the second female was unknown at this time. [D‘s son] told DePinto that the home belonged to the defendant . . . and that [the defendant] had indicated he would engage in a shootout with the police if they came to the house.
“The New Britain police patrol division prepared a plan of action: locate [the defendant], any witnesses, the second female injured and present this to the detectives for follow-up investigation. Plainclothes detectives were assigned to surveil 830 Slater Road, and other officers began to gather intelligence about [the defendant]. In reviewing his criminal history, the investigating officers learned [that the defendant] had serious felony convictions and, in light of that information that a weapon was used during the assaults and that [the defendant] possessed weapons in the house, the special response team was also called to the scene. At approximately 2:15 p.m., [Sergeant] Carlos Burgos met with officers in an area near 830 Slater Road to discuss potential scenarios and the safety concerns for the neighbors in the area as well as for the responding officers.
“Photographs of the property confirm the testimony describing the area. There was a brick, two-story dwelling with a steel fence around a portion of the front yard,
“On-scene officers observed [the defendant] pacing the property, going in and out of the house and, at one point, disrobing, purportedly to show [that] he was unarmed. He was seen holding a knife. One officer saw the rear taillights of the black automobile in the driveway turn on, and when Powers asked him if he turned the car on remotely, [the defendant] denied it. Other officers observed movement inside the house at multiple windows.
“Other officers continued to seek information regarding the incident. DePinto learned from [the defendant‘s] former girlfriend that she had been to 830 Slater Road over the preceding weekend and had seen the two females, who were still present when she left. She also indicated that [the defendant] was acting irrationally and out of control. A written statement by [D‘s son] was taken from 5:15 to 5:50 p.m. There, the police learned that [D] had told him that [the defendant] was affiliated with the Outlaw motorcycle gang, he had guns in the house and that he had people watching his house when he wasn‘t home. They also learned that items of potential evidentiary value could be found within the house.
“At approximately 6:30 p.m., [the defendant] approached the fence to speak with the police, and he was seized by officers and arrested for breach of the
A
The defendant first argues that the court erred in denying his motion to suppress because the protective sweep was unlawful. Specifically, he argues that the police had “no basis to believe a third party was in the home,” and, therefore, they lacked an articulable basis on which to justify the protective sweep. We disagree.
The court, in its memorandum of decision denying the defendant‘s motion to suppress, determined that the protective sweep was lawful. It found: “Based upon all of the articulable facts and rational inferences known to the New Britain police at the time of the defendant‘s apprehension, a reasonably prudent officer would conclude the following: a serious assault of two women had occurred within the prior twenty-four to thirty-six hours at 830 Slater Road. One victim was being treated for serious injuries at the hospital. That victim told her son that she was tied up, beaten, hit with a pistol and physically degraded. She said that the defendant had guns in the house and he had people [who] watched his house. After several hours of no contact [between the police and] the defendant while the home was under surveillance, he exited the house. He was uncooperative with the police, and his behavior was erratic, agitated and at times bizarre. The defendant had a history of felony convictions. Movement was seen within the house and a car in the driveway was started, with the defendant denying that he did it. Based upon the defendant‘s behavior on scene, the police were within their rights to disbelieve the defendant‘s statements that he possessed no weapons and no [that] one else was inside the house.”12
“[T]he standard of review for a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record . . . . [W]here the legal conclusions of the court are challenged, [our review is plenary, and] we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Kendrick, 314 Conn. 212, 222, 100 A.3d 821 (2014). Accordingly, the trial court‘s legal conclusion regarding the applicability of the protective sweep doc-
“It is axiomatic that the police may not enter the home without a warrant or consent, unless one of the established exceptions to the warrant requirement is met.” (Internal quotation marks omitted.) State v. Kendrick, supra, 314 Conn. 224. “All three exceptions [to the warrant requirement], the exigent circumstances doctrine, the protective sweep doctrine and the emergency doctrine, must be supported by a reasonable belief that immediate action was necessary.” Id., 225.
“The protective sweep doctrine . . . is rooted in the investigative and crime control function of the police. . . . As its name suggests, the purpose of the doctrine is to allow police officers to take steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” (Internal quotation marks omitted.) Id., 229. “Recognizing the often competing interests of the individual‘s expectation of privacy and the officers’ safety, the court [in Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990)] . . . determined that there were two levels of protective sweeps. Concerning the first tier of protective sweeps, the court concluded that as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. . . . Concerning the second tier of protective sweeps, the court concluded: Beyond that . . . we hold that there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”13 (Citation omitted; internal quotation marks omitted). State v. Spencer, supra, 268 Conn. 588.
“Although the United States Supreme Court never has ruled on the constitutionality of a protective sweep of a home, incident to an arrest occurring just outside that home, the federal courts that have addressed the issue uniformly have held that the reasoning of Buie applies to that situation.” Id., 589.
In Spencer, our Supreme Court recognized “that Buie was grounded in the principle that arresting officers have an immediate interest in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. . . . This important safety interest is not diminished simply because the arrest has occurred just outside of the home.” (Citation omitted; internal quotation marks omitted.) Id., 590; see also United States v. Colbert, 76 F.3d 773, 776 (6th Cir. 1996) (“in some circumstances, an arrest taking place just outside a home may pose an equally serious threat to the arresting officers“).14
Within the first tier of protective sweeps, arresting officers can “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Maryland v. Buie, supra, 494 U.S. 334. In the present case, the defendant was arrested outside of his home, near the fence line bordering his property. Therefore, the defendant‘s home cannot be characterized as a space ” ‘immediately adjoining’ ” the place of the arrest. See State v. Spencer, supra, 268 Conn. 591. We therefore must determine whether the search in the present case was justifiable as a second tier protective sweep.
The second tier of protective sweeps under Buie encompasses searches of areas beyond those spaces immediately adjoining the place of arrest. To satisfy the
In the present case, the following facts are sufficiently specific and articulable to support a reasonable belief that the defendant‘s home harbored a third party posing a danger to those on the arrest scene. First, the police reported that they saw movement within the defendant‘s home.16 Second, the police reported that there were multiple cars on the defendant‘s property. Third, it was reported that a car in the driveway was started, and the defendant denied that he was the person who started it. There had been a report of a serious assault of two women that was alleged to have occurred within the prior twenty-four to thirty-six hours at the defendant‘s home. One of the women was reportedly being treated for serious injuries and alleged that she was hit with a pistol, indicating the presence of a handgun
These facts are sufficiently specific and articulable to support a reasonable belief that a third party was inside of the home and, on the basis of the information that had been provided to the police regarding the presence of firearms at the home, that the third party posed a danger to those on the arrest scene. Accordingly, we conclude, on the basis of the totality of all the facts and the reasonable inferences drawn therefrom, that the warrantless search of the defendant‘s home was a justifiable protective sweep under Buie.
B
The defendant concedes that his next two claims with respect to his motion to suppress are unpreserved and requests review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). Generally, this court is not required to consider a claim “unless it was distinctly raised at the trial or arose subsequent to the trial.” Practice Book § 60-5. It is well established, however, that an unpreserved claim is reviewable under Golding when “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Footnote omitted.) State v. Golding, supra, 213 Conn. 239-40. “The appellate tribunal is free to respond to the defendant‘s claim by focusing on whichever Golding prong is most relevant. . . . [T]he inability to meet any one prong requires a determination that the defendant‘s claim must fail.” (Citation omitted; internal quotation marks omitted.) State v. Esquilin, 179 Conn. App. 461, 475, 179 A.3d 238 (2018).
1
The defendant claims that the police “laid siege to his home, roused and summoned him with coercive force, and constructively seized him” under the
In United States v. Allen, 813 F.3d 76, 81 (2d Cir. 2016), the United States Court of Appeals for the Second Circuit explained the constructive entry doctrine: “Under [the constructive entry] doctrine, when officers engage in actions to coerce the occupant outside of the home, they ‘[accomplish] the same thing’ and achieve the same effect as an actual entry, and therefore trigger [the] protections [of Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)].”18 United States v. Allen, supra, 813 F.3d 81. The court declined to apply the constructive entry doctrine, but noted that courts applying the doctrine “determine whether a non exhaustive list of factors, such as the events immediately preceding or accompanying the order, the number and location of officers, the nature and content of the words used to transmit the command, and whether police guns are holstered or brandished, constitute circumstances sufficient to trigger Payton . . . .” Id., 88. In reviewing a claim of constructive entry, a court must determine whether “[t]he police show of force and authority was such that a reasonable person would have believed he was not free to leave.” (Internal quotation marks omitted.) United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir. 1984), cert. denied, 471 U.S. 1061, 105 S. Ct. 2126, 85 L. Ed. 2d 490 (1985).19
In the present case, the court found that “[a]fter 5:30 p.m. . . . the police attempted to reach the defendant over the telephone. The police then used sirens and other loud noises to see if anyone inside the house would respond. [The defendant] then exited his house.” The court further found that the defendant was seized by officers at approximately 6:30 p.m., when he was placed under arrest for breach of the peace, threatening, and interfering with the police. As we previously have noted, the defendant did not argue before the trial court that the police constructively entered the defendant‘s home. The trial court, therefore, did not make any additional factual findings with respect to the conduct of the police when they first attempted to make contact with the defendant and whether the police show of force and authority was such that a reasonable person would have believed he was not free to leave. It is well established, however, that “when reviewing the constitutionality of an alleged seizure, we must parse the entire record, and not only the trial court‘s express findings.” State v. Edmonds, 323 Conn. 34, 64, 145 A.3d 861 (2016).
“Our Supreme Court has clarified that [a] record is not inadequate for Golding purposes because the trial court has not reached a conclusion of law if the record
In the present case, the record is insufficient to determine whether a constitutional violation has occurred. First, the record is unclear as to whether the police ordered the defendant to exit his home when they first attempted to make contact with him.20 At the suppression hearing, the defendant and Sergeant Burgos offered conflicting testimony. The defendant testified that he “heard over the loudspeaker, Robert Cane, come out of your house.” Sergeant Burgos, however, testified that, before the defendant first exited the home, one of the officers used audible sirens to make noise seeking to alert anyone within the home. Sergeant Burgos did not testify that a loudspeaker was used.
Second, the record is unclear as to how many police officers surrounded the defendant‘s home at the time that the constructive entry is alleged to have occurred.21 Although several officers testified that they had been present at 830 Slater Road, there had been no testimony as to how many total officers were present and whether those officers were in a location such that they would have been visible to the defendant before he exited his home.
In summary, the record is unclear with respect to the factual predicates necessary to establish the defendant‘s claim on appeal. See State v. Morales, supra, 164 Conn. App. 167 (“[i]f the facts revealed by the record are . . . unclear . . . as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the defendant‘s claim” [internal quotation marks omitted]). In addition, the state was not put on notice of this claim and, accordingly, was not given an opportunity to put on evidence regarding this claim.22 See State v. Chemlen, 165 Conn. App. 791, 814-15, 140 A.3d 347 (holding record inadequate for review under first prong of Golding because state not put on notice of claim made on appeal and, thus, not given opportunity to put on evidence regarding claim, and because record did not contain adequate facts and state prejudiced by lack of notice), cert. denied, 322 Conn. 908, 140 A.3d 977 (2016). Because there is an insufficient record in the present case, there is no way to know whether a violation of constitutional magnitude in fact has occurred. See State v. Brunetti, 279 Conn. 39, 55, 901 A.2d 1 (2006). The defendant‘s
2
The defendant next claims that the police lacked probable cause to search his vehicle. Specifically, he argues that “no officer saw the defendant open [the vehicle],” and “[t]he idea that the defendant could remotely place a pistol in the trunk of the car is not remotely realistic.” We conclude that the defendant‘s claim fails to satisfy the third prong of Golding.
“Certain well established legal principles guide our analysis of this issue. Both the
“Furthermore, because of our constitutional preference for a judicial determination of probable cause, and mindful of the fact that [r]easonable minds may disagree as to whether a particular [set of facts] establishes
We conclude that the information contained in the affidavit supported the issuing judge‘s determination that probable cause existed to search the defendant‘s vehicle. The defendant takes issue only with the second prong of the probable cause requirement, namely, “[whether] there is probable cause to believe that the items sought to be seized will be found in the place to be searched.” (Internal quotation marks omitted.) Id., 689.
As we previously have noted, in the affidavit submitted in support of the application for the second search warrant, the affiants averred: “[N]o handgun, yellow shirt, steel toe boots were located as described by the victim, however, during the incident prior to [the defendant‘s] being arrested he was observed to walk back and forth to a black Cadillac, bearing registration 137XHF. Responding officers heard the alarm that is commonly sounded when the vehicle is locked or unlocked with a remote as [the defendant] walked to the vehicle. DMV records show that the said vehicle is registered to the defendant. . . . [The] affiants believe that [the defendant] could have brought evidence to the vehicle from the crime scene within the home prior to surrendering to the police as the handgun, dog collar, yellow shirt, [and] steel toe boots were not located within the residence.”
On appeal, the defendant, citing to the trial transcript, argues: “Critically, no officer saw the defendant open the Cadillac or any of its hatches.” As we previously have stated, however, “[i]n determining whether the warrant was based [on] probable cause, we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom.” (Emphasis added; internal quotation marks omitted.) State v. Shields, supra, 308 Conn. 691; see also State v. Holley, 324 Conn. 344, 353, 152 A.3d 532 (2016) (“[i]n
In their application for a search warrant, the affiants averred that they observed the defendant walk back and forth to the vehicle in question and that they heard the sound of the vehicle being locked or unlocked as the defendant walked to that vehicle. From this information, the issuing judge reasonably could have inferred that the defendant had access to the vehicle either at the time that they observed his movements or prior to the officers’ arrival. The issuing judge, therefore, further reasonably could have inferred that the defendant may have moved the evidence that the police sought from inside his home, where those items were last seen,24 to the vehicle in question.
We conclude that the information set forth in the affidavit supported the issuing judge‘s determination that probable cause existed to search the defendant‘s vehicle and, therefore, the search of the defendant‘s vehicle that resulted in the seizure of a firearm and ammunition satisfies federal and state constitutional standards. Accordingly, because the defendant has not shown the existence of a constitutional violation that deprived him of a fair trial, his claim fails under the third prong of Golding.
II
The defendant next claims that the trial court abused its discretion when it granted the state‘s motion to join the two informations for trial. Specifically, he argues that joinder prevented him from testifying. The defendant concedes that he affirmatively waived any objection to the joinder and, therefore, requests that we review his claim under the plain error doctrine. See Practice Book § 60-5. We conclude that the defendant cannot prevail under the plain error doctrine.
The following additional procedural history is relevant to this claim. At the hearing on the state‘s motion for joinder, the defendant, personally and through counsel, expressly stated that he had no objection to joinder.25 The court thereafter granted the state‘s motion.
At trial, after the close of the state‘s case, the court canvassed the defendant as to whether he would testify on his own behalf. The defendant elected not to testify. During the canvass, the defendant stated that, although he “personally . . . would like to [testify],” when “all the pros and cons were laid out and what we‘ve wit-
We begin by setting forth the legal principles that guide our analysis of this claim. “An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record. Although a complete record and an obvious error are prerequisites for plain error review, they are not, of themselves, sufficient for its application.” (Internal quotation marks omitted.) State v. McClain, 324 Conn. 802, 812, 155 A.3d 209 (2017).
“[T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice.” (Citation omitted; internal quotation marks omitted.) Id., 812.
An appellant “cannot prevail . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Emphasis in original; internal quotation marks omitted.) Id.; see also State v. Coward, 292 Conn. 296, 307, 972 A.2d 691 (2009). “It is axiomatic that, [t]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court‘s judgment . . . for reasons of policy. . . . Put another way, plain error review is reserved for only the most egregious errors. When an error of such a magnitude exists, it necessitates reversal.” (Citation omitted; internal quotation marks omitted.) State v. McClain, supra, 324 Conn. 813-14.
The defendant argues that although he affirmatively waived any objection to the joinder, his claim is nevertheless reviewable under the plain error doctrine because of our Supreme Court‘s holding in State v. McClain, supra, 324 Conn. 812. In McClain, our Supreme Court held that a Kitchens waiver28 does not preclude plain error review. Id., 812; see also State v. Juan V., 191 Conn. App. 553, 571-75, 208 A.3d 680 (2019)
In response, the state argues that “[t]he defendant‘s reliance on McClain is misplaced because in McClain, our Supreme Court concluded that a ‘’ ‘Kitchens waiver,’ ‘’ which refers to an implied waiver based on counsel‘s having had an opportunity to review proposed jury instructions, does not preclude plain error review . . . . Here, however, counsel and the defendant explicitly stated that they had no objection to joinder. As in [State v. Cancel, 149 Conn. App. 86, 102, 87 A.3d 618, cert. denied, 311 Conn. 954, 97 A.3d 985 (2014)], these statements constitute an explicit waiver of any claim challenging joinder and plain error review is not appropriate.” (Citation omitted.) In Cancel, this court rejected a claim that it was plain error for the trial court to grant the state‘s motion for joinder, reasoning that the defendant had waived any claim regarding the joinder. This court concluded: “Because . . . the defendant waived any claim regarding the joinder of the cases for trial, there is no error to correct. . . . [A] valid waiver . . . thwarts plain error review of a claim.” (Citation omitted; internal quotation marks omitted.) Id., 102-103.
Even if we were to read our Supreme Court‘s holding in McClain broadly to extend its application to the circumstances of the present case, and thus assume that the defendant‘s waiver would not preclude him from prevailing under the plain error doctrine, we conclude that the defendant cannot demonstrate that the claimed error was “so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Emphasis omitted; internal quotation marks omitted.) State v. McClain, supra, 324 Conn. 812.
On appeal, the defendant argues that joinder prevented him from testifying.29 Specifically, he argues that he had testimony to provide concerning the firearms charges in the second information but that he had “ample reason not to testify with respect to the assault and kidnapping counts” in the first information and, therefore, joinder “caused substantial prejudice . . . .” We are not persuaded.
The defendant relies on State v. Perez, 322 Conn. 118, 139 A.3d 654 (2016), in support of his argument. In Perez, our Supreme Court addressed the standard that applies “when a criminal defendant contends that severance of the charges is necessary because he or she wishes to testify as to some charges but not as to others.”30 It held that “no need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and [a] strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on one count
In the present case, however, the defendant did not move to sever the informations. He did not, at any point, indicate that he wanted to testify concerning some of the counts against him but not others, even when the court canvassed him regarding his decision not to testify. The claimed error, therefore, was not “so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.” (Emphasis omitted; internal quotation marks omitted.) State v. McClain, supra, 324 Conn. 812.31 Accordingly, joinder did not constitute plain error.
III
Last, the defendant raises an unpreserved claim of judicial bias. Specifically, he argues: “In this case, the trial court adjudicated the accusers ‘victims’ in its November 3, 2016 memorandum of decision on suppression—four days before evidence commenced and two weeks before the defendant was acquitted of the allegations in which the trial court named the accusers ‘victims.’ This combined with the trial court‘s sentencing comments, in which it excoriated the defendant for acts far beyond the scope of his convictions including acquitted conduct, constitute[d] actual and apparent bias at sentencing.” (Emphasis omitted.) We are not persuaded.
The following additional procedural history is relevant to this claim. In its memorandum of decision on the defendant‘s motion to suppress evidence, the court referred to D and P as “victims.” Specifically, in its memorandum of decision, the court found that “[f]rom the early moments of the recorded conversation, [the defendant] demeaned and blamed the two women victims.” In addition, in its determination with respect to the protective sweep, the court found, in relevant part, that “[b]ased upon all of the articulable facts and rational inferences known to the New Britain police at the time of the defendant‘s apprehension, a reasonably prudent officer would conclude the following: a serious assault of two women had occurred within the prior twenty-four to thirty-six hours at 830 Slater Road. One victim was being treated for serious injuries at the hospital. That victim told her son that she was tied up, beaten, hit with a pistol and physically degraded.”
The defendant did not, at any point in time, move for judicial disqualification or for a mistrial before the trial court. At the conclusion of the trial, the defendant was acquitted of the kidnapping and assault charges in
At the defendant‘s sentencing, the court summarized the events leading up to the discovery of the firearms, ammunition, and marijuana. It noted in relevant part: “The defendant‘s interactions with the New Britain police on the date in question showed a highly agitated man, unwilling to interact with the police in any way but the way he wanted. The original allegations of kidnapping, assault and weapons were such a serious nature to the police, that‘s all they had, and they were trying to investigate it, but at the time that you interacted with them, Mr. Cane, you escalated the situation, and it became extremely volatile and all of this was because of your actions. You were manipulative with the police on that day and you were invasive in your communications. I believe that you were still high, likely on the Oxycodone, given your addiction to those prescription medications.”32 The court also noted that the defendant‘s mental health evaluations indicated that he “can be extremely manipulative and . . . highly critical of authority . . . .” Last, the court stated that “[t]his entire case stems from [the defendant‘s] poor choices. His choice to escalate his prescription medication addiction instead of seeking help, his choice to grow marijuana and keep it in his house, his choice to keep a nine millimeter handgun and enough ammunition for who knows what, his choice to go out and invite two unknown women into his home and engage in a drug-fueled week of debauchery. . . . You have no one to blame but yourself for the position that you find yourself in today.”
Immediately before imposing the defendant‘s sentence, the court stated: “The sentence today is simply punishment. You are a grown man who has had numerous contacts with the criminal justice system. Yes, you finished probation, but you clearly learned nothing from your experience and when you get into trouble, you do it big. You are violent, you are dangerous and you cannot make good decisions or learn from your actions. Society needs to be protected from you, and this sentence will hopefully make sure that you do not have a next big crime.”
On appeal, the defendant claims that the court‘s reference to D and P as victims in its memorandum of decision on his motion to suppress, in addition to its statements at the sentencing hearing, demonstrate judicial bias. The defendant concedes that he failed to preserve this claim and now requests review pursuant to the plain error doctrine;
“Accusations of judicial bias or misconduct implicate the basic concepts of a fair trial. . . . It is a well settled general rule [however] that courts will not review a claim of judicial bias on appeal unless that claim was properly presented to the trial court via a motion for
“In reviewing a claim of judicial bias, this court employs a plain error standard of review. . . . The standard to be employed is an objective one, not the judge‘s subjective view as to whether he or she can be fair and impartial in hearing the case. . . . Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge‘s impartiality might reasonably be questioned is a basis for the judge‘s disqualification.” (Citations omitted; internal quotation marks omitted.) State v. Carlos C., 165 Conn. App. 195, 206-207, 138 A.3d 1090, cert. denied, 322 Conn. 906, 140 A.3d 977 (2016).
In the present case, the defendant argues that the court displayed judicial bias34 because it first “found the defendant guilty [of the kidnapping and assault charges] prior to any evidence” by referring to D and P as victims in its memorandum of decision,35 and subsequently considered the kidnapping and assault charges in sentencing the defendant. (Emphasis omitted.) The defendant argues that, because he was acquitted of the kidnapping and assault charges, the court was required to find that the acquitted conduct had been proven by a preponderance of the evidence, pursuant to United States v. Watts, 519 U.S. 148, 156, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997),36 in order to be considered at the defendant‘s sentencing. Specifically, he contends that “the Watts court considered whether a sentencing court could consider acquitted conduct when sentencing for counts of [a] conviction (in a multicount indictment). . . . [T]he court held that a district court could consider the acquitted conduct at sentencing if it found it proven by a preponderance of the evidence.” (Citation omitted; emphasis omitted.) The defendant further argues that the court in the present case “was unable to impartially adjudicate this sentencing fact” because it previously had referred to D and P as victims in its memorandum of decision on his motion to suppress.37
The record, however, does not support the defendant‘s contention that the court considered the kidnapping and assault charges when it sentenced the defendant. Although the court had mentioned the kidnapping and assault charges when it summarized the events leading to the discovery of the firearms, ammunition, and marijuana, it had referred to the kidnapping and assault charges as the “original allegations” and there-
The judgment is affirmed.
In this opinion the other judges concurred.